Florida/Georgia Personal Injury & Workers Compensation

...[11] If the Legislature intended to impose an affirmative duty on a hospital to "condition" the grant of staff privileges on a physician's establishing financial responsibility, it would have included this requirement in the sections governing a hospital's grant of staff privileges. Like section 458.320, section 766.110, Florida Statutes (2006), was enacted as part of the Comprehensive Medical Malpractice Reform Act of 1985. See ch. 85-175, §§ 23, 28, Laws of Fla. [12] Section 766.110(1) provides that all health care facilities have "a duty to assure comprehensive risk management and the competence of their medical staff and personnel through careful selection and review, and are liable for a failure to exercise due care in fulfilling these duties." Conspicuously absent from section 766.110 is any mention of civil liability for a hospital's failure to ensure the financial competence of its staff-privileged physicians. The fact that section 766.110 expressly imposes a duty on and creates a cause of action against hospitals for a breach of that duty provides a strong indication that the Legislature did not intend to impose civil liability on hospitals in section 458.320....

...each other and are harmonized") (internal quotation marks omitted). Had the Legislature intended to hold hospitals liable for failing to ensure physician financial responsibility, it would have either included such a duty and cause of action within section 766.110 or used parallel language to impose civil liability in section 458.320....

...[11] Section 395.0193 was originally codified at section 395.0115, Florida Statutes (Supp. 1982), and has been revised several times since. However, the provision has never included a duty on the hospitals to discipline or revoke the staff privileges of physicians who fail to maintain financial responsibility. [12] Section 766.110 was originally codified at section 768.60, Florida Statutes (1985)....

...Each suit alleged Dr. Robert Pendrak performed negligent surgery, resulting in injury or death to Respondents or Respondents' decedent. The Hospital was alleged to be negligent in credentialing, retaining or supervising Dr. Pendrak, in violation of section 766.110, Florida Statutes....

...the services. A person is responsible for the negligence of [his] [her] independent contractor if, in [hiring] [or] [retaining] the independent contractor, the employer failed to exercise due care.] Insinga v. LaBella, 543 So.2d 209 (Fla. 1989) ; F.S. 766.110....

...agement] [and] [the competence of its medical staff], and, if so, whether that negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made). NOTE ON USE FOR 402.11d Derived from F.S. 766.110....

...This appeal followed. Within Chapter 766 of the Florida Statutes, entitled "Medical Malpractice and Related Matters", (Fla. Stat. § 766.101, et seq. 1990), there is a separate section relating to the liability of health care facilities. Florida Statutes § 766.110....

...Motta joined his practice group, only five to ten percent of Dr. Colletta's practice now involves vascular surgery. At the conclusion of the evidence, the trial court denied appellant's motion for directed verdict on his comparative negligence. It also denied his request for a jury instruction that violating section 766.110, Florida Statutes (1995), regarding hospital procedures for selecting staff members, was evidence of negligence on the ground that the theory had not been pled....

...Because Dr. Colletta was not negligent, the hospital's credentialing of him could not have proximately caused appellant's injuries. Thus, any error by the court in *792 refusing to permit Dr. Sydorak's credentialing testimony and in refusing to give the section 766.110 jury instruction is irrelevant....

...NOTES [1] The parties' experts also disagreed over whether Dr. Kaskel should have advised appellant of his lack of pedal pulses and whether Dr. Colletta should have used an ankle brachial index to ascertain the blood pressure in appellant's ankle. [2] This duty has been codified in what is now section 766.110(1), Florida Statutes (1995).

...Perez for staff privileges. This cause is remanded to the trial court for further proceedings consistent with this opinion. [*] Petition for writ of certiorari granted. LEHAN and ALTENBERND, JJ., concur. NOTES [*] We are aware of the provisions of section 766.110, Florida Statutes (1989) (formerly section 768.60), dealing with the liability of health care facilities for failing to fulfill the duty to assure competence of their medical staff....

...Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 949 (Fla.1994). To determine whether the O'Sheas' claim against the clinic for negligent supervision and retention "arises out of the rendering of, or the failure to render, medical care or services," we examined section 766.110, Florida Statutes (1997)....

...This section provides that all health care facilities, including hospitals and ambulatory surgical centers as defined in Chapter 395, have a duty to assure comprehensive risk management and the competence of their medical staffs through careful selection and review. See Fla. Stat. § 766.110(1) (1997)....

...Among the specific duties assigned by this section is the adoption of a comprehensive risk management program which fully complies with the substantive requirements of Fla. Stat. 395.0197, as appropriate to such hospitals size, location, scope of services, physical configuration, and similar relevant factors. Fla. Stat. 766.110(1)(b) (1997)....

...cedure is a `claim arising out of the rendering of ... medical care or services.'" 746 So.2d at 1109. In other words, we looked at the nature of the underlying conduct in characterizing the health care facility's statutory liability under Fla. Stat. 766.110 as medical negligence *339 liability, rather than administrative negligence....

...On the contrary, she alleges that the sexual assault occurred "suddenly and unexpectedly" within minutes after the start of her first office visit with Dr. Snyder. As mentioned above, we held in O'Shea that the nature of the underlying conduct determines whether the health care facility's liability under Fla. Stat. 766.110 should be considered medical negligence liability....

...are clinic based on noncompliance with the presuit requirements of Chapter 766 or expiration of the limitations period for medical malpractice claims. Although the plaintiff in this case does not specifically allege Nova's liability under Fla. Stat. § 766.110, her allegations of negligent supervision and retention bring this statute into play....

...Chapter 766 imposes an additional duty on health care facilities, which is to assure the competence of medical staff and personnel through careful selection and review. A patient may sue for the failure to exercise due care in fulfilling this duty, when such failure is the legal cause of injury to a patient. Section 766.110, Florida Statutes (1997), provides: (1) All health care facilities, including hospitals and ambulatory surgical centers, as defined in chapter 395, have a duty to assure comprehensive risk management and the competence of their medica...

...management processes are being diligently carried out. Each such facility shall be liable for a failure to exercise due care in fulfilling one or more of these duties when such failure is a proximate cause of injury to a patient. (Italics supplied). Section 766.110(1)(b) requires a health care facility to adopt a comprehensive risk management program which fully complies with the substantive requirements of section 395.0197, Florida Statutes (Supp....

...forth in section 766.102(1)." Similarly, we hold that the presuit requirements of Chapter 766 are also mandatory where a claimant's cause of action is based on a health care facility's failure to exercise due care in fulfilling the duties imposed by section 766.110; the claim that a facility has improperly supervised or retained an employee who has committed sexual abuse on a patient arises "out of the rendering of ... medical care or services." Sacred Heart Hosp. of Pensacola, 635 So.2d at 949. A cause of action arising under section 766.110 is a type of "medical malpractice" or "medical negligence" to which the Chapter 766 presuit requirements apply....

...er, 685 So.2d at 885 (involving premises liability). The distinction between Perez and this case is that this case involves the sexual misconduct of an employee. The health care facility's liability for the misconduct of the employee is addressed by section 766.110....

...Defendant, Florida Hospital Waterman, Inc. is directly liable for inadequate staffing and/or negligent hiring which may be uncovered as the case progresses. 13. Defendant, Florida Hospital Waterman, Inc. is further directly liable for any non-conformities with Florida Statute § 766.110 including, but not limited to: Assuring the competence of its medical staff and personnel; selecting and retaining competent medical staff and personnel; diligently supervising its medical staff and personnel; adopting adequate written pro...

...It asserted that the claims arose from the rendering of, or the failure to render, medical services and the suit was therefore a medical negligence action subject to dismissal for failure to follow pre-suit procedures. It further argued that with regard to a statutory cause of action based upon section 766.110, Florida Statutes (2009) (duty to assure competence of medical staff members), this theory is predicated upon the provision of non-negligent care to patients and implicates the pre-suit requirements....

...h services arising out of the matters which are the subject of evaluation and review by such committee... . Plaintiffs' sole argument that their case is distinguishable from Cruger is that, unlike in Cruger, the complaint here alleges a violation of section 766.110(1), which provides in part: All health care facilities, including hospitals and ambulatory surgical centers, as defined in chapter 395, have a duty to assure comprehensive risk management and the competence of their medical staff and...

...Plaintiffs rely on Tarpon Springs General Hospital v. Hudak, 556 So.2d 831 (Fla. 2d DCA 1990), in which the court also quashed discovery of information which was privileged under section 766.101(5), but noted in a footnote that it was not addressing the applicability of section 766.110 because it was not pled or argued. We cannot agree with plaintiffs that including a claim under section 766.110(1) makes this information discoverable. If the legislature had intended for there to be an exception to section 766.101(5) for claims brought under section 766.110(1), it would have been a simple matter for the legislature to do so. While we agree with plaintiffs that their inability to get this information will make it difficult for them to prosecute a claim under section 766.110(1), we cannot carve out an exception to the rule where the legislature did not make one....

543 So.2d 209 (Fla. 1989); F.S. 766.110. [When a [person] [facility] undertakes

...and negligent security involved medical care or services. As such, the trial court did not depart from the essential requirements of law by denying St. Joseph's motion for summary judgment as to count one. But in count two of her complaint, Ms. Doe alleged violations of section 766.110, which is entitled "Liability of healthcare facilities": 20....

...Joseph's was a health care facility as defined in [c]hapter 395 of Florida Statutes. 21. In addition to its common law duties, St. Joseph's had separate duties pursuant to Florida Statutes, [section] 766.110 to provide risk management and assure the competence of its personnel, through the adoption of a comprehensive risk management program in compliance with [section] 395.0197, Florida Statutes, and thro...

...23. St. Joseph's breached its obligation to diligently administer its procedures, to supervise and monitor its hospital personnel, and to investigate and report Ms. Doe's allegations of sexual abuse. Section 766.110(1) states that [a]ll health care facilities, including hospitals and ambulatory surgical centers, as defined in chapter 395, have a duty to assure comprehensive risk management and the...

..."medical review and risk management processes . . . including the supervision of the medical staff and hospital personnel to the extent necessary to ensure that such medical review and risk management processes are being diligently carried out." § 766.110(1)(a)-(c). Ms. Doe specifically alleged in count two of her complaint that St. Joseph's violated the requirement of section 766.110 that it have and comply with a comprehensive risk management program pursuant to section 395.0197, Florida Statutes (2010)....

...on," § 395.0197(5), and therefore necessarily "aris[e] out of . . . medical, dental, or surgical diagnosis, treatment, or care," see Fassy, 884 So. 2d at 364 (quoting J.B., 635 So. 2d at 947). Ms. Doe simply cannot plead count two under sections 766.110 and 395.0197 and allege a violation of a statutory duty to institute and maintain a risk management program concerning adverse incidents associated with medical intervention without complying with the presuit notice requirements of chapter 766....